Seale v. SealeSeale v. Seale
Decided and Entered: October 26, 2017
Calendar Date: September 13, 2017
Before: Garry, J.P., Egan Jr., Devine, Aarons and Rumsey, JJ.
Wardlaw Associates, PC, Saratoga Springs (Donna E. Wardlaw of counsel), for appellant.
Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Paula Nadeau Berube of counsel), for respondent.
MEMORANDUM AND ORDER
Garry, J.P.
Appeals (1) from an order of the Supreme Court (Breen, J.), entered July 24, 2014 in Warren County, which, among other things, denied plaintiff‘s motion to hold defendant in contempt of court, (2) from an order of said court (Bruening, J.), entered January 21, 2015 in Warren County, which, among other things, denied plaintiff‘s motion for a money judgment, and (3) from an order of the Family Court of Warren County (Wait, J.), entered December 14, 2015, which, among other things, denied plaintiff‘s objections to a prior order of
This action seeking the dissolution of an eight-year marriage was commenced in May 2010. The parties were divorced pursuant to a March 2014 judgment that was the subject of a previous appeal (149 AD3d 1164 [2017]). In April 2014, plaintiff (hereinafter the wife) moved, as pertinent here, for an order of protection against defendant (hereinafter the husband) and for orders holding the husband in contempt and directing him to pay counsel fees. In July 2014, Supreme Court (Breen, J.) directed the husband to pay $2,000 in counsel fees and to return certain items to the wife, and denied the remaining requests. Also in July 2014, the wife filed an order to show cause requesting, as pertinent here, a money judgment in her favor and counsel fees based upon the husband‘s failure to make equitable distribution payments and to pay certain child care costs. In August 2014, she moved for counsel fees in connection with her appeal from the divorce judgment. In January 2015, Supreme Court (Bruening, J.) denied the wife‘s request for a money judgment but awarded her $2,000 in counsel fees on that issue, denied her request for counsel fees on the award, and referred the issue of child care expenses to Family Court. The parties later stipulated that the husband would pay the disputed expenses and that the sole question for the court to resolve would be the wife‘s entitlement to counsel fees on that issue. In March 2015, the Support Magistrate awarded the wife $2,000 in counsel fees. In December 2015, Family Court denied the wife‘s objection to the amount of the counsel fee award. The wife appeals from the July 2014, January 2015 and December 2015 orders.
We turn first to the determination of Supreme Court (Breen, J.) declining to hold the husband in contempt. Pursuant to a 2010 pendente lite order, the wife was granted exclusive use and occupancy of the marital residence (hereinafter the Carriage Hill property). The findings of fact and conclusions of law, incorporated into the judgment of divorce, determined that the Carriage Hill property was the husband‘s separate property, but the provisions of the pendente lite order were temporarily continued, and the wife was directed to surrender the residence to the husband by a specified date. Certain items of personal property that were located in the Carriage Hill property were awarded to the husband, and he was authorized to
This Court will not overturn a contempt determination in the absence of an abuse of discretion (see Matter of Wesko v Hollenbeck, 149 AD3d 1175, 1176 [2017]; Matter of Rebecca O. v Todd P., 309 AD2d 982, 983 [2003]), and we find no such abuse here. A party seeking a finding of civil contempt based upon the violation of a court order must establish by clear and convincing evidence that the party charged with contempt had actual knowledge of a lawful, clear and unequivocal order, that the charged party disobeyed that order, and that this conduct prejudiced the opposing party‘s rights (see Judiciary Law § 753; Matter of Khan v Khan, 140 AD3d 1252, 1253-1254 [2016]; Matter of Aurelia v Aurelia, 56 AD3d 963, 964 [2008]). The husband‘s counsel averred that, after the judgment issued, counsel provided the husband with a timeline of dates for the performance of various actions. This document mistakenly advised him to obtain his possessions from the Carriage Hill property “Immediately.” The husband averred that he relied upon this erroneous timeline rather than reading the lengthy findings of fact and conclusions of law in detail, and thus incorrectly believed that he was entitled to enter the residence. Nothing in the wife‘s submissions contradicted this account of counsel‘s error, demonstrated that the husband knew that the direction was mistaken or revealed that his reliance upon the error was “entirely unreasonable” (Matter of McCormick v Axelrod, 59 NY2d 574, 585 [1983], amended 60 NY2d 652 [1983]). Accordingly, we do not find clear and convincing evidence that the husband committed a knowing violation by entering the residence.
As for the personal property, the findings of fact and conclusions of law provided that the husband was entitled to possess “the dishes and silverware of [his] mother” and some tools, but did not enumerate the particular objects covered by this broad direction. The husband averred that he believed that he was entitled to all of the property that he took, and, although Supreme Court ultimately directed him to return some items, it did not find that he had acted knowingly in taking them. On this record, we cannot find that the findings of fact and conclusions of law “clearly expressed an unequivocal mandate” as to which possessions were awarded to the husband (Howe v Howe, 132 AD3d 1088, 1089 [2015] [internal quotation marks and citations omitted]; accord Matter of Gerber v Gerber, 145 AD3d 1128, 1129 [2016]; see Monaco v Monaco, 116 AD3d 452, 452-453 [2014]).
The wife also contends that Supreme Court should have held a hearing to determine which items should be returned. However, “A hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone” (Jaffe v Jaffe, 44 AD3d 825, 826 [2007] [internal quotation marks and citation omitted; emphasis added]; see Matter of Chichra v Chichra, 148 AD3d 883, 885 [2017]; Quantum Heating Servs. v Austern, 100 AD2d 843, 844 [1984]). Here, the court was thoroughly familiar with the parties, having recently presided over their divorce trial, which had included 30 days of testimony. The parties submitted extensive documentation supporting their competing ownership claims, and the court stated that its decision was based upon careful consideration of these submissions. Upon our review, we find no abuse of discretion in the determination that no hearing was required (compare Howe v Howe, 132 AD3d at 1090-1091). In view of our resolution of these issues, we need not address the wife‘s contentions related to counsel fees for the contempt application.
The wife also contends that Supreme Court should have held a hearing to determine which items should be returned. However, “[a] hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone” (Jaffe v Jaffe, 44 AD3d at 826 [internal quotation marks and citation omitted; emphasis added]; see Matter of Chichra v Chichra, 148 AD3d 883, 885 [2017]; Quantum Heating Servs. v Austern, 100 AD2d 843, 844 [1984]). Here, the court was thoroughly familiar with the parties, having recently presided over their divorce trial, which had included 30 days of testimony. The parties submitted extensive documentation supporting their competing ownership claims, and the court stated that its decision was based upon careful consideration of these submissions. Upon our review, we find no abuse of discretion in the determination that no hearing was required (compare Howe v Howe, 132 AD3d at 1090-1091). In view of our resolution of these issues, we need not address the wife‘s contentions related to counsel fees for the contempt application.
The wife next contends that Supreme Court erred in denying her application for an order of protection based on family offenses allegedly committed by the husband1. Supreme Court is authorized by
Turning to the January 2015 order, the wife contends that Supreme Court (Bruening, J.) erred in refusing to issue a money judgment in her favor based upon the husband‘s failure to make several equitable distribution payments. The findings of fact and conclusions of law required the husband to pay the wife a sum for equitable distribution related to the Carriage Hill property by a specified deadline, and to pay other sums for expert fees and two installment payments for counsel fees on the dates of any sales or transfers of his separate property or by specified deadlines. In her enforcement application, the wife asserted that the husband had belatedly paid only part of the Carriage Hill obligation and had made no payments for expert or counsel fees after selling a parcel of separate property in June 2014. In September 2014, while the motion was pending, the husband sold a second parcel of separate property and paid the remainder of the Carriage Hill obligation, the expert fee obligation, and the first counsel fee installment payment. The court thereafter denied the application, finding that the husband had paid all monies that were due.
The wife‘s request for a money judgment should have been granted.
We disagree with Supreme Court‘s determination that no arrears were due when the motion was decided. Pursuant to the plain language of the equitable distribution provisions, the husband was required to make the expert fee payment and the first installment payment of counsel fees at the time of the first sale of his separate property after the divorce judgment was issued; this occurred in June 2014. The equitable distribution provisions expressly contemplate two separate counsel fee payments, with the second to become due at the time of the next separate property sale. That sale occurred in September 2014. The husband did not make the second counsel fee installment payment in September 2014; that payment was in arrears when the motion was decided. As the husband had made no prior application for relief and had not shown good cause for his failure to do so,
It is undisputed that no arrears now remain outstanding. Nevertheless, the wife seeks interest for the periods in which the various payments were due but unpaid.
Thereafter, both a bench decision issued shortly after the September 2014 transaction and the January 2015 order presently upon appeal interpreted the provisions of the divorce judgment to find that the second counsel fee installment payment had not yet become due. Although we now disagree with this interpretation, these rulings provided the basis for a sincere belief on the husband‘s part that he was not then required to make the second installment payment (see Desautels v Desautels, 80 AD3d at 930; Parnes v Parnes, 41 AD3d at 937). Under these circumstances, we find that the husband met his burden to demonstrate that his delay in making payments was not willful. Thus, the wife is not entitled to interest for the periods of delay (see Theophilova v Dentchev, 117 AD3d 531, 533 [2014]; see also Yeager v Yeager, 38 AD3d at 535).
We next address the wife‘s contentions as to the counsel fee awards. First, she asserts that her request for $3,600 in counsel fees for her enforcement application should have been granted in full.
We find no merit in the wife‘s challenge to Family Court‘s denial of her objection to the counsel fee award on the child care issue. After the parties stipulated that the husband would pay the disputed expenses — an amount of about $1,700 — the Support Magistrate found that the husband‘s failure to pay these expenses was not willful, and awarded $2,000 in counsel fees to the wife, who had requested more than $6,000. The wife contends that the husband‘s conduct was willful and that a mandatory, rather than discretionary, counsel fee award in the full amount of her request was thus required (see
Egan Jr., Devine, Aarons and Rumsey, JJ., concur.
ORDERED that the orders entered July 24, 2014 and December 14, 2015 are affirmed, without costs.
ORDERED that the order entered January 21, 2015 is modified, on the law, without costs, by reversing so much thereof as denied plaintiff‘s motion for a money judgment; said motion granted; and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court